214 Ill. App. 262 | Ill. App. Ct. | 1919
delivered the opinion of the court.
Under the 6th paragraph of the will, appellant is devised a life estate in 80 acres of the land, and at her death the surviving executor is directed to sell the same and divide the proceeds among the three children named. Under the 7th and 8th paragraphs, the executors are directed to manage the remaining 120 acres of land in the way that they think will be to the best interest of the estate during the life of appellant. Out of the proceeds from this tract of land the executors are directed to pay $200 per year to appellant as long as she lives, and to deposit the balance in the Bank of Ayers Bros., once each year, and upon the death of appellant the surviving executor to divide the moneys in the bank equally between the ten children. The surviving executor is also directed to sell the 120 acres ■ at the death of appellant and divide the proceeds thereof among the seven children of appellant.
It is clear that under the terms of the will there - was an equitable conversion of the lands and that the 6th and 7th paragraphs of the will are bequests of personalty. Martin v. Martin, 273 Ill. 595; Glover v. Condell, 163 Ill. 566. Under this will the surviving executor took title in fee to the lands mentioned in trust for the purpose of selling the fee-simple title after appellant’s death. Although power to sell lands be not directly conferred by the express terms of a will, yet it will be implied where it is the duty of the executor under the will to make the sale and distribute the proceeds. Lash v. Lash, 209 Ill. 595. A trust was imposed upon the executors, and they occupied the dual capacity of executors and trustees. Lash v. Lash, supra; Glover v. Condell, supra; Hale v. Hale, 146 Ill. 227; Greenwood v. Greenwood, 178 Ill. 387. "Where a will charges,an executor with duties of a trustee without distinguishing his duties as trustee from those as executor, it does not amount to a failure to appoint a trustee. Welch v. Caldwell, 226 Ill. 488. The estate had long been settled when the matters in controversy here became involved. After the sale of the personal property and the payment of the debts, the estate became settled, and the acts of appellant and appellee as coexecutors ceased, and they should have made a final report and have been discharged as such. In carrying out the remaining provisions of the will, they act as trustees and not as executors. The funds in controversy in this so-called executor’s report are purely trust funds, over which neither the County Court nor the Circuit Court on appeal therefrom had any jurisdiction whatever. County Courts cannot administer on testamentary trusts. Wylie v. Bushnell, 277 Ill. 484. The orders of the County Court and the Circuit Court are void and of no effect. The County Court should require the coexecutors to make a final report as such executors, and declare the estate settled. If appellee, as a cestui que trust, desires an accounting from appellant as trustee, he has his remedy by a bill in equity. Warner v. Mettler, 260 Ill. 416. A trustee cannot in the first instance present a report to the Circuit Court and ask for its approval, and much less to the County Court, which has no jurisdiction of trusts whatever. Warner v. Mettler, supra.
The judgments of the Circuit and County Courts are reversed and cause remanded with directions to proceed in conformity with this opinion.
Reversed and remanded with directions.
